Advisory Opinions - The Cheese Stands Alone

Episode Date: June 29, 2020

David and Sarah discuss another big day at the Supreme Court, from the court's decision to strike down a Louisiana abortion law to its ruling on the Consumer Financial Protection Bureau. Show Notes: -Our conversation with Louisiana's solicitor general -Supreme Court's Louisiana abortion ruling -Supreme Court's CFPB ruling -David's Sunday newsletter Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And Sarah, the Supreme Court did some big things today. You know what they didn't do though, David? Decide Espinoza? That's right. They didn't decide Espinoza. It's a joke.

It's the first thing my husband said to me today. They will not decide Espinoza until you stop saying they're going to decide espinoza it's now the by far the latest outstanding case yes yes i i expect it tomorrow i'm gonna i'll do the predicting this time i expect it tomorrow but we did get yes 2.3 big cases, maybe 2.2. We got the June medical case, which is a case involving the reach of the First Amendment beyond the borders of the United States. And so that one we'll save for last. And we're just going to go ahead and be really upfront with you guys. ahead and be really up front with you guys. These are long cases that just were handed down exactly. Well, the first one was handed down exactly two hours and 13 minutes ago from when we're recording this. June Medical was handed down less than two hours ago. It's a long case with a long majority opinion, long dissents, lots to unpack here. I've already gotten into a Twitter squabble with some of my friends about it because I

have perhaps the most pessimistic take on the case from a pro-life perspective, but we'll break all that down and why I might be wrong to be pessimistic. And then, so we've really, Sarah and I have mostly dived into June Medical, but we've also looked at CELA Law. So this is going to be a work in progress. And what we're probably going to end up doing, especially considering we're going to have more cases tomorrow, we're probably going to record tomorrow also.

And Thursday, we'll probably have even more thoughts about what we've said today and reflect back on it as to whether or not our initial assessments felt right. It still feel right days later. So when we've got 10 more opinions coming out, so this, there were three today, 10 more left.

It's amazing. Amazing. And there's a conference coming on Wednesday. Yeah. Explain Sarah, why that might mean possibly could possibly mean we might have 10 opinions tomorrow. I mean, I now think that's unlikely

since we only got three today, but there is a conference at the end of the term when the justices have released all their opinions. So when they scheduled one for Wednesday, there was some, you know, chitter chatter

that perhaps they were going to try to put everything in on Monday and Tuesday this week. I now think that's a little unlikely because it would mean 10 cases tomorrow, but not impossible. And I mean, yeah, not impossible. Yeah. I mean, I'm not expecting 10, but it's yeah. So on the one hand, the May arguments were late, but on the other hand, the court likes to wrap up by the end of June. So we've got sort of two competing things here. Normally I would say, yeah,

they're getting it done for sure because nobody wants to go into the July 4th holiday. The justices teach abroad and have summer plans. All of those have presumably gotten kicked to the wayside by coronavirus. They're not going to Europe this year. But you still want to finish out by June. The problem is all these May opinions.

So I'm just going to go ahead and I want my wishlist. I want Guadalupe. I want Espinoza and I want Little Sisters of the Poor, like one, two, three, and I all want them to come out. Trump finance cases?

You're not... Well, I'm more like academically interested in the Trump finance cases. I'm more emotionally invested in the religious liberty cases. So after June medical, I kind of want to pick me up. And so I'm hoping for some good results from a religious liberty perspective in the religious liberty cases. And it'd be great to just get them all tomorrow just to make you just feel a little bit better about life. But let's, let's, well, the one thing we know now on, uh, SCOTUS bingo, Kavanaugh will not be writing most likely any of your may cases, Trump finance, uh, ministerial exception, little sisters of the

poor, most likely not Kavanaugh. That's all that we know from SCOTUS Bingo. Okay. Well, that doesn't tell us a lot. Not a lot. So, well, let's dive into June Medical. Let's start with the top line. So, the top line is by an interesting 5-4 alignment, the Louisiana Admitting Privileges Law. This was a law that was very, very similar to a Texas Admitting Priv admitting privileges law that was struck down in a case five years ago called Whole Women's Health by a 5-3 margin. That case was 5-3 because Justice Scalia had passed away and his successor had not been confirmed yet. So that was an eight-person alignment. Justice Kennedy provided the swing vote, striking down a Texas admitting privileges law

that required an abortion doctor to have admitting privileges at a hospital located within 30 miles of the abortion clinic. Louisiana had... Also, probably worth noting that we had a wonderful podcast on this case, but it talked a lot about Whole Women's Health with the Solicitor General of Louisiana who argued this case right before her argument. So highly recommend if you're very into this case, go back and listen to that. It was right before she argued this case before the court.

And we have a long discussion on Whole Women's Health and what all that meant going into this. Yes. Good. I'm glad you pointed that out. And so that was a 5-3 case. Now, this is important when we're thinking about this case. The three dissenting justices in that case were Justice Roberts, Justice Alito, and Justice Thomas. Since Whole Women's Health, we've had two justices added to the court, one removed. So Justice Kennedy retired, replaced by Justice Kavanaugh. Justice Gorsuch took the Scalia seat. So it's a substantially different court, but looking at a very similar statute. This was a Louisiana statute that required abortion providers, abortion doctors to have admitting privileges in a hospital located within 30 miles of the abortion clinic. law in spite of the fact that it was almost identical to the Texas law that had been struck down. And it upheld it by saying the facts are different in Louisiana from Texas. There would

be less of a substantial burden on abortion rights. Louisiana went to the court and defended the law by saying, you don't have to overrule the key abortion precedents, Roe and Casey, to rule for us. This is important for the analysis later. But to the extent that you cannot rule for us without overruling Whole Woman's Health, we'd ask you to overrule Whole Woman's Health, but they didn't even argue that it was necessary to overrule Whole Woman's Health to win. All right, with that as a wind-up, how did the case turn out? By an interesting 5-4 alignment where Justice Roberts voted to strike down the Louisiana statute, which was nearly identical to the Texas statute that he had voted to uphold

five years before. Why? Stare decisis. So he didn't join with the liberal four justices on all of the reasoning at the case the more progressive four justices he basically stood with them in the mainly in the result only that because of stare decisis and the value of a stable precedent he was going to strike down the louisiana law footnote stare decisis Latin. A doctrine of stare decisis translates to stand by things decided. Yes. Please continue. Yes. Now, there was an interesting alignment in the dissents. Justice Thomas wrote a pretty lengthy dissent all by himself, where he basically said a pox on all of the court's abortion jurisprudence. Roe and Casey, Roe is made up out of whole cloth. The court's abortion jurisprudence is just

rotten to its core and should be overruled. He was alone in that dissent. The other justices, Justice Alito wrote a dissent that thomas also joined in part and the other justices joined in a dissent that and here's a really important part of this one and this it said um one there was not a proper plaintiff before the court if a proper plaintiff is added the district court should conduct a new trial and determine, based on proper evidence, whether enforcement of the Louisiana law would diminish the number of abortion providers in the state to such a degree that women's access to abortions would be substantially impaired. So this basically said, the dissent basically said, look,

whole women's health doesn't stand for the proposition of striking down all statutes that require admitting privileges or equivalent statutes that require admitting privileges. Instead, we're required to do a factual analysis of whether or not there would be a substantially impaired access to abortion in the event that this law is upheld. That hasn't been fully done until that's fully done. If at the end of the day that's fully done and there is substantial impairment, then those dissenting justices indicated that they would also strike down the law. And so that's sort of the basic gist of it. And Justice Kavanaugh had a brief dissent as well. But I've monologued enough, Sarah.

What did I miss? What are your thoughts? So I broke this into three different buckets for me that were interesting. And I think we should talk about all three. You've touched on all three. One is now the standard moving forward for abortion restriction laws

because that was a key point of contention between the majority, Roberts' concurrence, and the dissenters. Second, third-party standing doctrine, which will have implications far beyond this case of when you can bring a lawsuit

trying to vindicate someone else's rights. There were, you know, four votes, certainly in the majority, that the abortion clinics had standing to bring this on behalf of their potential patients. And Roberts sided with them in footnote four. So hardly like a, you know, ringing endorse. Yeah, boy. Yeah. Yeah. I'm all for this. Um, and that was really on waiver. So we should get to that because I think that'll be a, a sticky thing going forward where abortion cases seem to have a different third party standing doctrine than all other third party standing doctrine. Right. And the last thing is like, what does stare decisis mean? Uh, in terms of just abortion doctrine moving forward?

How many votes are there to overturn, Casey? And I guess I would say after this, maybe just one. Yeah. Let's dive. Let alone Roe. Yes. Let's dive into that part of it because this is what, because I think this is one where people are going to say, okay, what does this really mean for the abortion right itself?

And I did a quick Twitter thread that a number of people who may be right, because this is a speculative thread, disagreed with. And I basically said, look, from a pro-life perspective, this outcome is worse than you think. And I'll just briefly read it because it's not that long a thread. I said- David French citing David French. Yes, exactly. Exactly. That really beefs up my citation record, if I can just go ahead and cite myself. So I said, first, the abortion decision from a pro-life perspective is worse than you think. It's not really 5-4 on the core of the abortion right. It's more like 8-1.

Only Thomas attacked Roe and Casey. Oh, man, I didn't even see you wrote this. Okay, wow, we're in agreement on that. The other dissenters say, essentially, apply, Casey. This means, in plain English, that even the dissenters would likely strike down the Louisiana law if the plaintiffs could show that their access to abortion was substantially impaired. In other words, the law would be upheld only if it didn't do much about abortion at all. It's true that Louisiana didn't ask the court to overrule Casey.

That's important. Perhaps another justice agrees with Thomas, but all we know is what they just said and what they just said indicates that the court abortion right is at least as secure as it was in 1992 when Casey was decided. Sarah, agree or disagree?

I mean, to exactly the caveats that you said, Casey was not briefed. Right. And so maybe some of that is just justices sort of taking this at face value, particularly Alito. But no question that the votes there to apply the Casey standard, you know, you'd almost you'd expect potentially to see a footnote like I'm applying the Casey standard because they didn't ask us to reach Casey, yada yada. If we were asked to reach Casey, maybe some dicta along those lines, especially because it's a dissent anyway

and Alito hasn't exactly held his punches this term. Right, exactly. So I agree. I think it's 8-1 to uphold Casey at least in broad strokes. And I would not say that, I would not say that

if Thomas hadn't dissented and clearly dissented from Roe and Casey and no one joined him. So the cheese stands alone. Yes. And so now if, if, uh, because you know, some great folks, a good friends of mine at Wayland, Ryan Anderson, we're saying that's not fair. That's not a fair assessment. The only reason I made it, and I agree with them on this extent, that you cannot definitively predict because the plaintiffs did not ask, or the state of Louisiana, I'm sorry, did not ask for Casey to be overturned. But Thomas went there by himself, all by himself. But Thomas went there by himself, all by himself. And as you said, it's not as if Alito has been pulling his punches lately at all. that there is a greater protection for abortion rights now than there was when Casey was decided because the combination of Whole Women's Health

and June Medical have kind of changed the Casey test a little bit. So, okay, let's go to then the first bucket. Yeah. The first bucket, which is what is the standard moving forward? The four votes. So everyone's calling this a five, four decision. I would like us to call it a four, one, four

decision, even though technically that means something else. But, uh, this is this, this is pretty close to a four, one, four. So the four, uh, upholding or sorry, striking down the Louisiana law upholding a whole woman's health. They wanted the Louisiana law, upholding whole women's health. They wanted this balancing test that was in whole women's health, where it's like, on the one hand, is it a burden? On the other hand, what are the benefits? Something like that. A Breyer balancing test, always our favorite thing from him. I have a friend who does the best Breyer impression, by the way. Imagine that your case is a tiger. Now imagine

that tiger has turned into a baguette. What would the baguette be cut into? Five slices? Or eight? He can do the voice better. But the Casey test is just the undue burden test. he can do the voice better. So,

but the Casey test is just the undue burden test. Yes. And what Roberts does in his one, his concurrence, is say, I'm upholding

Whole Woman's Health, you know, under stare decisis. So I'm striking down the Louisiana abortion restrictions. But I do not adopt the Whole Woman's Health balancing test.

Okay. But that's whole women's health, which you just upheld, which you just upheld. And the dissent sort of takes him to task for this Gorsuch in particular. I thought of, um, you know, that case, it does not say what you think it says. Yeah. So under Casey, the state, this is Robert's opinion. Under Casey, the state may not impose an undue burden on the woman's ability to obtain an abortion. Quote, a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman

seeking an abortion of a non-viable fetus. Laws that do not pose a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. Laws that do not pose a substantial obstacle to abortion are permissible so long as they are reasonably related to a legitimate state interest. After faithfully reciting this standard, referring, he's now referring to the four other justices, the court in Whole Woman's Health added the following observation. The rule announced in Casey requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. The plurality repeats today that the undue burden standard requires courts to weigh the law's asserted benefits against the burden it imposes on abortion access.

And he rejects this. Casey also rules out the balancing test adopted in Whole Woman's Health. Whole Woman's Health simply misinterpreted Casey and I agree that Whole Woman's Health should be overruled insofar as it challenged the Casey test.

Unless Casey is re-examined and Louisiana has not asked us to do that, the test is adopted and should remain the governing standard. That last part came from Alito. Right. So we end up with this messy what is the test is adopted and should remain the governing standard. That last part came from Alito. So we end up with this messy, what is the test moving forward? And what's odd is that you have five votes to strike down the Louisiana law,

and you have five votes to apply the Casey undue burden test because Roberts joins the Casey test with the four dissenters, but he joins upholding whole women's health with the four majority years. Right. And that's why I think it's a 4-1-4 opinion. Yeah. I think that it's entirely possible that the next abortion case, whenever it's taken, could result in a 5-4 decision reaffirming the Casey test and rejecting the whole women's health test in the application to a different kind of statute. I think the admitting privileges case,

if you're going to try to send an admitting privileges case up to the Supreme Court, good luck with that. That's done. Well, although I do think there is some chance, some chance that June Medical comes back. You think there's some chance?

No, explain, explain. David's face was just like, oh God, no, no. We don't want to go through this again. Well, it's getting remanded. If you apply the Casey standard on remand

and the court finds that, you know, if it applies the five that have to apply the Casey test versus the five that uphold whole women's health, you could end up with this coming back up again. It's possible. It's theoretically possible. Unlikely, but theoretically possible. But yeah. All you need is four votes. But you know, so maybe this should wait for another podcast, but my wheels are turning now about the legal strategy of the pro-life movement. What is the legal strategy of the pro-life

movement going forward? Does for that matter, the pro-choice movement. I think both have to sit back for a second and think about what this means for both litigation strategies. What to challenge on the pro-choice side, I think just became interesting as well. Yeah. I think it opened those horizons perhaps a little bit. Oh, I don't know. A little bit, I don't know. I mean, I think it's a whole heck of a lot of status quo

with maybe arguably a bit more abortion protective jurisprudence, but it's all up in the air because that exact alignment that we've just said that Roberts affirmed a case while disagreeing with the case and if you're i think on either side like this was a near miss for both sides in some ways and so be careful approaching the chief be very very careful yes um because i still don't think

you know how he's going to come out on the next case. And then, you know, on basically sort of if you're going to talk to anybody who has been spending any amount of time in the pro-life movement, you have all of this stuff about how strict or how loose is the undue burden test. That's all well and good, but the real question is, are Roe or Casey ever going to go away? And all of these challenges to the abortion restrictions that nibble around the edges always leave you with this problem of reading the tea leaves and always leave you with this problem of sort of saying, okay, but what does that really say about the one, the giant elephant in the room that everyone really truly cares about? And that's the fate of

Roe and Casey. And it raises an interesting question. Would it behoove the court to take a case like a heartbeat bill case that is completely where you cannot finesse that through Casey in any way, shape, or form and just tell the world where they stand on the fundamental underlying right? I don't think they will. I don't think they will. I think the... I don't think they'll take it. And I don't think either side will have the chutzpah to go for it. Oh, I think a state AG would lob a cert petition on... Oh, yeah. I think a state AG would lob a cert petition on. Oh, yeah, I think a state AG would lob a cert petition, but I don't think the court will take it. I don't think that I will. I don't know. It's possible that the progressive four, if they feel very confident, would take it for a reaffirmation decision. But I don't know. I don't know. I think that the short to medium term future of Supreme Court litigation around abortion is going to be

more of this, more of the multiple opinion, parsing of the test, peeling the test to pieces, incremental this way, incremental that way. It just feels like that's where we're going to go if we're even going to have another abortion case anywhere in the near future. So when you talk to your pro-life litigation-y friends, this was not an unexpected outcome. No.

Well, I will say this. A little surprising. Which part? I would say that Roberts could have simply remanded for further factual development under the Casey standard. Upheld the Louisiana law under Casey and then said, you know, he could have joined the Alito dissent, which is essentially, hey, find out if this is actually a substantial impairment. Or he could have joined on the standing issue with the plaintiff, which we haven't even gotten into at all. What is not at all surprising is that nothing, and this is what I wrote after the oral argument, I was like pro-lifers who think that, oh, it's a new court, it's a new day. There was zero indication from the oral argument that anyone was considering any substantial change

in the underlying abortion jurisprudence. That was just not at issue. And there was no hint that that was at issue. And so people putting a lot of stock into this is a big advance for the pro-life movement. From oral argument, you just knew this was going to be, if it was going to be a win, it was going to be on the slightest incrementalist grounds. So let's put this in the context then of the Title VII case.

That was, I think, more of a shock. And so it caused these reverberations within the movement. I don't think this was a shock. And so I'm not feeling a lot of the ripples going on. But at the same time, to your point, Gorsuch and Kavanaugh are new to the court. There were the butt judges voters in 2016. And this is another loss on that. Now, mind you, those justices voted in the dissent, but you have Roberts hanging out there in the middle, living his best O'Connor life. Well, and let's just go ahead and remind everyone why you want to listen to advisory opinions,

because who was not shocked about the Title VII case? Me. You and me we both neither one of us were shocked by the title seven case so keep listening guys yeah um we've kind of gotten some of these big ones right going in so far although i've been wrong about when espinosa's coming out now for seven well details details caleb by the way, our producer, just nodded with such a knowing smugness on that. His eyebrows were up in his hairline. Now... Mmm, yes.

Well, let's move on to standing, because this actually gets at something that is also irritating to me. And that... I would think so. And that is how rules seem to be. Normal rules sometimes seem to be bent in abortion case law. There's a reason why pro-life lawyers for years have doctrines in favor of abortion rights. And this one was, how is it that doctors can file a lawsuit to preserve the rights of their patients, especially when the doctors are actually being regulated in the name of protecting the patients.

Doesn't that create, isn't that not just third party standard and standing? Normally I have to be the one, my rights have to be impaired before I can file a lawsuit. I can't file a lawsuit on behalf of other people. And especially if there's a conflict of interest, a potential conflict of interest. especially if there's a conflict of interest, a potential conflict of interest. And this was an issue where I thought the dissent was especially pointed and vigorous, was why are we doing this? Why not find an actual person who believes that their rights, an actual person seeking an abortion who believes that this burdens their rights,

and why not find the proper plaintiff and go through this litigation. And that was an aspect of this that I think is esoteric to a lot of people. You say standing doctrine and even most lawyers start to fall asleep. Well, maybe it's worth a few minutes on standing what that really means. So there's a threshold question for courts called jurisdiction. There's a few things that can reach jurisdiction. These are unwaverable, meaning the court can sua sponte decide, in fact, must decide that it has jurisdiction. Is there a case or controversy? Is it the right court to bring it in front of? Things like this, where whether the parties raise it or not, the court can say,

we just don't have jurisdiction and the case is kicked. Standing is like the next one after that. Okay, so we have jurisdiction. You're in the right court. There really is a case or controversy. Yada, yada, yada. Are these the right people in front of me to argue this?

But it can be waived. Right. If neither party raises it, the court does not have to raise it on their own. And so what a lot of what was at stake here was there was a third party standing argument raised, but it might have been raised too late. And so in his footnote, Chief Justice Roberts says, for the reasons the plurality explains at pages 11 through 16, I agree that the abortion providers in this case have standing to assert the constitutional rights of their patients. rights of their patients. Well, pages 11 through 16 state that the argument was waived, but then goes on to say, in any event, they would have had standing. So here's what's weird to me. The in any event is almost certainly dicta because they just said it was waived. event is almost certainly dicta because they just said it was waived. So normally I would have read footnote four without the page numbers to mean that he was simply, again, the fifth vote saying that third party standing argument had been waived. However, because he put the page numbers

that included the dicta, he could have said pages 11 through 12, for instance. That would have just been the waiver argument. But he said 11 through 16, which included the dicta on third parties standing basically not applying to abortion providers. Right. Oh, Sarah. So that's weird. Yep. Yeah.

And the dissent, to your point, the dissents, plural, point out that, you know, in at least one pretty famous case, a father was not allowed to bring a lawsuit on behalf of his child because their interests were in conflict. This was a prayer in school case. And it was like, well, the child doesn't have a problem with it. So the parent doesn't have standing to sue on behalf of the child. This is far from that. This is doctors who are being asked to jump through potentially hurdles that cost money or time. And then saying not that their constitutional rights are being violated by having to jump through those hurdles. There's no constitutional

right to provide an abortion, but that their patients' rights are being violated even though, in theory, the regulations are meant to protect those patients and increase the burden on the doctors. It would be unheard of

in another context, I think, to allow that conflict in a third-party standing doctrine, which the dissent points out quite nicely. The majority definitely said, like, in abortion cases, we have found third-party standing

for doctors many times. That is true. That's true. That's true. That is accurate. That's, again, what I refer to as the abortion distortion. I mean, to sort of put this in a way

that helps people understand the conflict of interest, Matt, let's take it out of the hot button topic like abortion, and let's put it in a context of, say, getting somebody's ears pierced. Imagine if you impose or a tattoo parlor, and what happens is a state passes a provision that requires a certain new form of tattoo gun to be used, which is more sanitary. I know nothing about tattoos. So either tattoo artists, listeners, please forgive me, or those who've received tattoos, please forgive me. I know nothing about

this. Well, do they have standing? Right. they have standing to forgive me if i'm wrong um so let's say you have a new standard that says um your your tattoo gun needs to be uh more san more sophisticated and sanitary and that puts a financial burden on the on the tattoo artist um that burden is put there for the benefit of the customer. And for the tattoo artist to say, I should have less burden, which is theoretically for the benefit of the customer, and assert that on behalf of the customer, is not the kind of case that is going to be brought

in virtually any other legal context. And I think that that is, you know, that's, again, I'll say it again, that is one of the reasons why the dissent, I think, was particularly, in some ways, particularly pointed in this case.

Yeah, and not a ringing endorsement on third-party standing from Roberts. I mean, it is in a footnote, and it does simply cite page numbers, not the reasoning. So I think there's some argument to be made in the future that he was pointing to the waiver part, not the standing itself part. That seems more right for future litigation, actually, than maybe any of this other Casey standards, stare decisis on whole women's health, I would maybe go after

the third-party standing doctrine. Now, Sarah, I have a question for you. Where does this case outcome leave you on your sort of overall theory of this term and Justice Roberts? Well, that's interesting. I think that it will all turn

on the Trump financial cases, which you have only a sort of sports interest in. But I think that is going to be the real tell on where Roberts is going because he's always, when it comes to these cultural,

like abortion in particular, if he's the swing vote, I mean, I could have told you this was coming out this way. I'm surprised it's not a true 4-1-4. nominee block on, say, religious liberty cases and has been very willing to strike down existing case law in other contexts. I mean, Citizens United. Well, and let me, yeah, and you know what's going to come down the pike here real soon? Affirmative action. And his famous line, if you want to stop discrimination on the basis of race, stop discriminating on the basis of race. After the Title VII case, we talked about this when that first came out, that Cass Sunstein had written this piece about how this would now

be applied to affirmative action, and it would get rid of affirmative action, the main affirmative action case from 1979. Yeah, that's common now. Lots of people are writing on the fact that this changes everything with Title VII and affirmative action. The cases pending against Harvard brought by Asian American students that say they were discriminated against under racial quotas.

That is like a big boulder just rolling down the hill. I think the court will take it. Whether it will be ready for next term feels a little unlikely. I think we're one more term away. And so that's a good example where Roberts had been very clear

about his feelings about it. But he was in the dissent on whole women's health, David. I know. He was absolutely in the dissent on whole women's health. Yeah. Whether his vote matters women's health. Yeah. Whether his vote matters affects his vote.

Yes. And you know what? That may be true for quite a few of us. I talk to voters all the time when we're talking about Trump versus Biden, for instance, who will say who they're voting for and then say, but, you know, I live in New York. Yeah. My vote doesn't matter. So I can vote for whoever I want. And you talk to voters in, well, what used, you know, what used to be Ohio, it's still Ohio,

but Ohio is no longer what it used to be. Uh, and you know, they really are like, well, I mean, it, they feel a lot of weight for that vote in a way that I think justice Roberts does when he becomes the fifth vote. I, I have basically come to the conclusion, two conclusions regarding Justice Roberts at this moment. And Justice Roberts, if you're listening, you may chuckle at this because we're psychoanalyzing you and we may get it all wrong. But yeah, but here, here, here are the two conclusions. One, conclusion one, is I think he's over the Trump administration. And that's the census case and that's the DACA case, which basically are both saying, do your job better and maybe I'd rule for you. So that's conclusion one. Conclusion two is I think the bigger the earthquake of a potential ruling, the less likely Roberts is to... Well, he is anti-earthquake.

So... Would you... I mean, maybe you're like Burkean. Would you say that Roberts ists is the burkean of the court uh non-revolutionary change incremental though it may be i mean because this was um you could read this as a very burkean opinion he did get rid of the whole women's health part that he found most objectionable and said that we needed to go back to Casey. And he is the vote for that, which makes it a five-vote majority for the Casey burden. So in that sense, he has made his incremental change in abortion analysis. And in that sense, your Twitter feed is wrong, and there's

a lot to celebrate if you're pro-life, because the whole women's health standard was you were never going to have an abortion restriction that would meet the whole women's health standard was you were never going to have an abortion restriction that would meet the whole women's health standard. And lots of them will meet the Casey standard. That is that is the take of someone who walks into a room and sees a pile of manure and says there's got to be a horse here somewhere. No, I see a pile of manure and think, that will make great fertilizer. But he did actually refer to Burke. Roberts did refer to Burke in his concurrence and I believe it was Justice Thomas

who was having none of that. A Burkean minimalist. I have a lot of sympathy for Burkean minimalists. But I would say, I think he's anti-earthquake. I think that he saw a striking down of Obamacare, the biggest, you know, one of the most consequential pieces of social legislation in a generation. And I think he saw the idea of the Supreme Court striking that down as earthquakey. Four months before an election. Four months before an election. Four months before an election.

He's not willing to do this. I think he understands. Both of these being about four months before an election. Exactly. There are a few issues at the court that are more earthquake-y than abortion. And he quite explicitly doubled down on the status quo here. But when it's a point of constitutional law that basically, you know, if you're going to interview 100 Americans and ask them about the point of legal principle, and maybe only two of them can give you a coherent answer, he can be really bold. Well, and I think affirmative

action interestingly falls on the other side of that. I think affirmative action is much closer to abortion and Obamacare in terms of most voters know what affirmative action is. But on the other hand, if you poll affirmative action, it doesn't poll particularly well. And that was not true of abortion or Obamacare. And again, before we get a lot of mail, I'm not saying that abortion is wildly popular in the country, but affirmative action actually is pretty skewed. Yeah, that's exactly right. I mean, when you poll that issue, it comes out quite different from sort of the elite opinion around affirmative action. Yes.

And abortion, the polling in abortion is just flat out all over the place. I mean, it so depends on how you ask the question. I was just going to say, it depends a lot on the pollster I found. Yes, yes, indeed. I can find you a poll to support any line you'd like about how people feel about abortion. Yeah, there is a, you know, the funny thing is, and I actually made this point in the comment section because somebody, I, in my Sunday newsletter, I was talking about how people are, there is, there's actually less hatred than we believe.

I loved your newsletter this week. Loved it. Oh, thank you. It was, it was touching. Made me happy. week. Loved it. Oh, thank you. It was touching. Made me happy. Oh, good. And somebody was saying to me, no, no, no, no. Abortion is every bit as polarizing as you imagine. And I said, you know, certainly there are two competing philosophical viewpoints about abortion that are quite opposite from each other. But most Americans have not adopted either one of those two competing philosophical perspectives they just have it that's right and and you can say that's muddled you can say that's you know fuzzy thinking you can say whatever you want to say about it but

that's where people are and it's just generally it's generally the case that the closer a baby gets to delivery, the more people want to protect the lot of enduring cultural power in the United States of America. And so people are a lot more muddled than the competing philosophical positions would seem to indicate. Let's pause for a moment and thank our sponsor, ExpressVPN. Being stuck at home these days, you probably don't think much about internet privacy on your own home network. Fire up incognito mode on your browser and no one can see what you're doing, right? Wrong. Even in incognito mode, your online activity can still be traced. Even if you clear your browsing history, your internet service provider can still see every single website you've ever visited. That's why if you care about your privacy, never go online without using ExpressVPN. ExpressVPN makes sure your

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So protect your online activity today with the VPN you should trust to secure your privacy. Visit my special link at expressvpn.com slash opinions, and you can get an extra three months free on a one-year package. That's expressvpn.com slash opinions. Expressvpn.com slash opinions to learn more. Well, let's make sure we get to some CFPB. Yes. So, the Consumer Financial Protection Bureau,

created under the Obama administration, financial protection bureau created under the obama administration is an independent agency headed by a single director and it was part of the dodd-frank act and so there were really two things at issue here one can an independent agency headed by a single director uh basically only be removable for inefficiency, neglect of duty, or malfeasance in office by the president? Or does that violate separation of powers? That was number one. Number two, if you can't have that, what happens to Dodd-Frank or the CFPB? to Dodd-Frank or the CFPB. So, not shocking how this turned out.

The court held that, in fact, it does violate the separation of powers for the president not to be able to remove the head of an independent agency, a single head that's not at will. That they're exerting executive power and it can't be separate from the executive branch created by Congress to have just like little baby executive branches

running around. Some notes on that though. There were a couple votes to basically overturn independent agencies. So this is based on a case called Humphrey's Executor, which is a great name, maybe because the name Humphrey is just on a case called Humphrey's Executor, which is a great name, maybe because the name Humphrey is just like a delightful name and more people should name their child Humphrey.

And I know I just had the opportunity to do that and passed it by. Shame on me. Although I think Nate's pretty happy to not be named Humphrey. So Humphrey's Executor upheld the Federal Trade Commission way, way, way back in the day, 100 years ago. The argument there was that the Federal Trade Commission way, way, way back in the day, 100 years ago. The argument there was that the Federal Trade Commission wasn't exerting executive action. It was this multi-member board. It was partisanly even. They were for set terms

and rotating set terms so that every president would get to pick some people. There were all these little protections in place that are irrelevant to the Constitution, I would argue. But nevertheless, so there were a couple of votes for overturning Humphrey's executor, which would basically get rid of all independent agencies. Sarah, I would be so down for that. Justice Kagan was not down for it, David. Not down for it in the dissent. And then on the second issue of whether it was severable, severability law, and I know several of you just went to sleep. If you're driving, wake up, wake up. We're going to talk about severability briefly. Severability is really important because it's going to come up over

and over and over again. And it's going to come up in the fall with the biggest case that they have on Obamacare and the individual mandate. And so the severability law they've made in this case is really important to next term, actually. And in this case, they held that just the director's appointment was totally severable from CFPB itself and its creation and Dodd-Frank. So when we're talking about the individual mandate next term, that's interesting because the individual mandate is at the very heart of Obamacare. So is it going to be severable like this was when clearly severability doctrine is, when we're excising these little tumors, we're, we're excising smaller and smaller portions under this court severability doctrine,

but Obamacare is going to challenge that. Yeah. So we'll say ability doctrine, let's sum it up. Um, are you excising a wart or the aorta? Yeah. And in this case it was a wart, again with um with a lot of thoughts on severability in these opinions because they know that they're this is a proxy war at this no i i agree completely with you that this was an extremely predictable outcome um the practice as a practical matter it is more power for the president. And which was, you know, in the severability argument, the reason why the severability argument was non-frivolous is arguably one of the purposes of the CFPB

was to create a degree of independence from the president. That was why it was done like this. But the bottom line is the president's power gets a little bit bigger because he has another agency that he controls where he has the absolute authority over the director. Now, let me just say this about Humphrey's executor. So if you're an originalist like me, I just want to read to you a point two in the syllabus of the case. This is May 27th, 1935. And this paragraph makes somebody like me just break out in hives. I'm excited for this. Don't know what he's going to say.

This construction of the act, this is the construction of the act where they upheld the independent commission, is confirmed by consideration of the character of the commission. An independent, nonpartisan body of experts charged with duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative, and by the legislative history of the act. Now, I don't have my handy pocket constitution with me right now, Sarah. No, it's in Article 14. Yeah. Yes. I'm really interested in the quasi-judicial, quasi-legislative branch of government. Yeah. Well, so if you overturn Humphrey's executor, which this case did not reach, obviously, but there's clearly some votes percolating for it, you could end up with some really interesting stuff because then the question becomes, is the independent agency exerting executive power? And I think you could argue that in 1935, actually, the FTC was not maybe exerting executive power, for all I know.

I'm no historical expert on what the original purpose of the FTC was not maybe exerting executive power for all I know. I'm no historical expert on what the original purpose of the FTC was and what they were doing. But let's give them the benefit of the doubt. Let's say that they really weren't having any executive power. That's not true anymore. All of these independent agencies exert some form of executive power. And that could be the new post Humphreys test, in which case all of those independent agencies would have some real problems. You could get rid of them in their current form and make them not independent possible. Or you could end up with something like what happened to the bankruptcy courts, where you actually just strip their ability to do the executive action and only leave them with non-executive powers.

So leave them totally in places independent, but go back to Humphrey's executor in that sense. Right. And say, that's fine, but you can't do all of these things anymore. And that has to live within either the legislative or the executive branch. That would be pretty interesting. That is exactly what the dissent does not want and what the administrative state really, really does not want because that would then have this trickle-down effect, I think, through the rest of the administrative state

of no more quasis. Yeah, I think we're way far away from that. I think you would need... I don't know. Yeah. I'm not saying it's happening next term. Right. But you know,

Gorsuch has, uh, spoken out many times on Chevron feelings. This is, this is part of the Chevron litter. I would say. Yeah. No,

I would say, I would say, I would say the litter of Chevron puppies. Part of the, well, I was going to say, I, I took litter in a different way.

I took litter as in like refuse. Part of that too. Part of the Chev i was gonna say i took litter in a different way i took litter as in like refuse part of that too part of the chevron our puppy the chevron puppy the humphreys puppy right exactly actually these would be great names if you're having a litter of puppies please consider letting me name your puppies chevron our and humphreys. Yep. Yeah. Yeah. The administrative, the administrative state brotherhood of puppies. Okay. Now we've lost everybody. So should we, well, they ran off the road during severability.

So it did. It did. So should we bring everyone back by just skipping straight to Will Ferrell? Yeah, let's do it. The last case just of 30 seconds, basically said that constitutional rights outside of America's borders,

not so much. This actually fits with the immigration case from last week, too, where just touching foot at the border was not enough to undo expedited removal. So there's just sort of a theme running through those of, you know, the Constitution applies to inside America's borders for Americans. If you're, you know,

outside, independent from us, you just don't have the benefits of those constitutional rights. So we were pondering, thank you for that summary, by the way. We were pondering our culture topic. And I was relating that I had spent last night watching Eurovision by Will Ferrell. Look, I am pro Will Ferrell. It's hard for me to think of a Will Ferrell movie that I don't like. As I was explaining to Nancy and the kids who were declining to join me in watching the movie. Wow. Declining.

Can you believe that? Wow. Because they didn't like the trailer. That's pretty bad, David. They didn't, come on. And I said, there are two kinds of Will Ferrell movies. There's the good and the great.

Wait, wait. Really quick though, when you're sent away to watch a movie on your own, do you get to watch it on like the main TV that you would get to watch other movies or are you relegated to like your laptop in the basement? No, no. I get the main TV. I get the main TV. That's interesting. Okay. Because when I want to watch like, um, the new Emma, I go to the bed with my laptop. It's like my own little special cave.

It's like a man cave, but for, um, you know, Jane, it's not negotiable. Will Ferrell is on the big screen. I mean,

that's just, that's how it is. Um, but so I, I watched it. I put it in the middle of the Will Ferrell pack, which means I thoroughly enjoyed it. But then that led to a green room discussion prior to the podcast of what is the Mount Rushmore

of Will Ferrell movies and why? And Sarah, your Mount Rushmore. I mean, for those who have heard me discuss best presidents, you have to go George Washington for best president because even though that's a boring answer, in fact, what he chose to do and what not to do was just so important. You know, my heart's with Lincoln, perhaps. No, definitely my heart's with Lincoln. But,

you know, Washington is the guy. Anchorman is Washington, right? Like there's no, there's, you know, your heart may be with something else but Anchorman is the definitive best Will Farrell movie I couldn't believe it's from 2004 David oh my god how old oh no I know if you had asked me I would have said like I don't know 2012 yeah like I get it wasn't yesterday but like 2004 wow it's 16 years old. That's like when I, this won't matter to anyone else. When I graduated high school and people would talk about like animal house,

I loved the movie animal house, but like it was an old movie to me. Like that's what talking to a current high school grad thinks of anchorman. Oh no. Yeah. Oh yeah. A current high school grad thinking about Anchorman is... I mean, it was an

old movie when they were old enough to start watching movies. Yes. That's insane. Yeah, so they actually probably do think of it like Animal House for me. Yeah. A great movie, but like a throwback, you know? Like, I felt very cool for knowing Animal House references. It would be like Monty Python and the Holy Grail

for me. Oh, another great. The quotable. Great movie. So quotable. So you've got your Washington. What's your Lincoln? I don't know. I don't know.

I mean, the other guys certainly has some Lincoln-esque qualities. What's yours? So, my Washington is also Anchorman. It used to be Talladega Nights until,

and then when I switched over to being a journalist, I had to pay homage to the GOAT journalist, Ron Burgundy. So. Oh, wait. You know what?

No. No. I know what my Lincoln is. My Lincoln is the campaign. Oh, wait. You know what? No. No. I know what my Lincoln is. Okay. My Lincoln is the campaign. Oh, my goodness. Which no one appreciated. I thought it was so spot on and actually one of the more accurate campaign movies that has ever come out. Yeah. 100% the campaign. Oh, that's fascinating. I put campaign middle of the pack. So I, my Washington is anchorman. Uh, my Lincoln is Talladega Knights. Um, just fair, phenomenal. Uh, my Jefferson is old school. He's not even the star really of old school, but he has some problems, but, and and i mean but he's the breakout he's the he's the breakout cameo like it's the he has his heat check moment he's like steph curry draining three after three after three from deep with the each moment he has he just steals steals the scene. Okay, then mine for that is probably going to be Zoolander. Again, not the lead. Maybe shouldn't be up there. But I mean, you can't have Zoolander

without Will Ferrell. And then I'm going to go with a shocker on my Roosevelt. On your Roosevelt? Okay, let's hear your Roosevelt. Ordinarily, one would say the other guys, or ordinarily one would say stepbrothers. But I'm going with the most underappreciated, but yet rewatchable movie, Blades of Glory. Will Ferrell. Not bad. Chaz Michael Michaels.

And the first all-male pairs figure skating team that includes a trick. Do you call them a trick or a stunt or whatever? A flip? So dangerous that it led to a decapitation in North Korea. I mean, I have to go the other guys. solid very close yeah solid but now um i am going to watch eurovision because as you may be aware i have um you know about 15 to 30 minutes each night that i can watch a movie so it's going to take me a few days listeners. Uh, but I will get back to you

whether I think that David per usual overrates everything he sees because he's such a good hearted person. I'm not sure we've ever talked about something that David didn't find redeeming qualities in and love. Well, as Kyle Smith, uh, the beloved film critic at national review, uh, we would have constant arguments because I've never seen a bad superhero movie. In the modern era of superhero movies, which I'm not sure exactly when

it begins, maybe the first of the modern X-Men movies, every one of them has been good. Like, every one of them has been... It's not your fault. They've just all been so good. Yeah, they're at least good, sometimes great, and occasionally transcendent, but I'm a fan. I'm not a critic. What's the, what's the worst movie you've seen that you can think of that was like actually bad, like bad. It wasn't good. You can't say anything good. There's no, however,

there's no, but Oh, that was actually that I that I was like left the movie theater mad or like sad. Like why did I do that? I will never get those two hours back. Oh, man. When did I last say that? It's been a long time. I've gotten a lot better at pre-screening. I'll have to think about that.

Okay. That'll be tomorrow. Yes. You have tonight to think about that. Okay, that'll be tomorrow. Yes. You have tonight to think about it. Tomorrow we'll talk about the worst movies that we've ever seen. Come prepared. Where I just go,

I can't believe what I just saw. Yeah. Yeah. I mean, in the 80s, I was a much more indiscriminate movie watcher. I can probably... That's weird because you feel pretty indiscriminate now. So Lord only knows what he was watching before.

Yeah. All right, David, I will see you tomorrow morning for our 10 a.m. green room where we just send back emojis to each other. OMG, wow, CFPB, abortion. Yeah, exactly. Those are our conversations at 10 a.m. Just one, yeah, exactly. But, exactly. Those are our conversations. Exactly. Just one. Yeah, exactly.

But I say Espinoza comes tomorrow. I say Little Sisters of Poor comes tomorrow. I say Guadalupe comes tomorrow and they're all going to come out the way I want them to come out. I'm just going to say it. And I'm not going to say anything because I'm so tired of being wrong.

All right. Well, be ready, listeners. Normally, you have a couple of days to listen to the podcast before the next one comes out. Now, we're going rapid fire. We're going rapid fire. We'll be right back at you tomorrow. But until then, thanks so much for listening. Please rate us on Apple Podcasts.

Five stars only, please. We've gotten some great feedback that I've really enjoyed that's buried the really occasional, very, very rare, totally misguided, bad review. You mean the ones where they say, Sarah's great, David, not so much?

Yeah, those. Who needs that? But again, thank you so much for listening, and we'll talk to you tomorrow.